Now here I am, poor fool.
And I'm just as smart as I was before.
I'm called "master" and -- would you believe it -- even "doctor."
For ten years I've led my students around by their noses, up and down, this way and that.
And in the end I see that it is impossible to know anything.
...
I don't fool myself that I know what's right.
I don't fool myself that I could teach anything that would improve or reform mankind.

In United States v. Owens, 448 U.S. 554 (1988), the United States Supreme Court appeared to hold that the mere presence of a prosecution witness in a criminal trial satisfies accused's Sixth Amendment right to confront that witness -- even if the witness has or feigns no memory of a hearsay statement that the prosecution offers against accused. However, as Colin Miller noted in a blog today, the Supreme Court of Mississippi recently held that this reading of Owens is incorrect and that the mere presence of the witness whose pretrial hearsay statement is used against accused does not satisfy the Sixth Amendment Confrontation Right. Goforth v. State, 2011 WL 4089967 (Miss. 2011). The Mississippi Supreme Court acknowledged that its reading of Owens is a minority view.

Will the prosecution seek review in the United States Supreme Court? If so, will the U.S. Supreme Court grant review? If so, will the U.S. Supreme Court slap down the Mississippi Supreme Court or will it say that its holding in Owens was a mistake -- or will it say, unconvincingly, that Crawford v. Washington, 541 U.S. 36 (2004), impliedly overruled or "undermined" Owens?

If the Court wishes to take this third tack, it faces the task of explaining why its "plain language" cum history approach in Crawford should not extend to the question of whether a witness can be said to "testify" against a criminal defendant merely by taking the witness stand. (But, having the last word, the Court does not always feel obliged to explain itself. The Court sometimes finds it is more convenient simply to ignore the plain language and meaning of a prior decision.)

About Me

Student of the law of evidence, evidence, inference, and investigation. Sometimes writes books. Sometimes writes articles. Sometimes tinkers with computer programs to support the marshaling of evidence for legal activities such as trials and pretrial discovery and investigation. And sometimes takes photographs.